When does a defendant’s contact “give rise” to a claim?

For specific jurisdiction, when does a plaintiff’s claim “arise” from a defendant’s contact?

This looks to the relationship between the D’s contacts and the P’s claim. This connection — the D contacts “giving rise” to P’s claim — is a necessary element of the three-part specific jurisdiction analysis.

Note that some courts use different tests. Yet other courts have not selected which test to use. Here are two approaches, though keep in mind that there are additional approaches beyond the two noted below. In an essay exam where specific jurisdiction is at issue, you should be ready to analyze the two tests below in the alternative.

Test 1: But-for test.

This test asks: but-for D’s contacts in the state, the claim would never have been asserted by P. Put differently, if the contacts did not occur, the claim would never have occurred either.

Test 2: Evidence test.

This test asks whether the D’s in-state contacts are themselves evidence that will be used by the parties in litigating the merits of the claim. I.e., the contacts are more than contacts, they are also evidence of the claim (whether it be fraud, negligence, or something else).

Hypo to illustrate the difference:

This hypo is based upon and expands on Prof. Glannon’s hypo on “giving rise” in his casebook.

D runs a resort in Alaska. D mails a brochure to P1, P2, and P3 in Florida promising a luxury resort. The brochure also says that “all foods served at our resort are peanut and gluten free.”

P1 reads the brochure and flies to the resort. When he gets to the resort, it is dirty and gross. P1 flies home to Florida and sues the Alaska resort in Florida state court for fraud.

P2 also reads the brochure and flies to the resort. When she gets to the resort, she slips on a banana peel and breaks her leg. P2 flies home to Florida and sues the Alaska resort in Florida state court for negligence.

P3 did not get the brochure before flying to the Alaska resort. However, P3 was already interested in going to Alaska and called his travel agent, who recommended D’s resort based on the travel agent’s previous visit to Alaska. P3 then flew to the Alaska resort. When he got there, he ate at the resort restaurant and suffered a horrible allergic reaction from peanut oil that the resort’s chef used in the food. When P3 got home, he finally received the brochure and was horrified to learn that the resort had incorrectly claimed that it did not use peanut oil. P3 filed a suit against the resort in Florida state court for breach of warranty.

Consider below whether D’s Florida contact (mailing the brochure to Florida) “gives rise” to the claims of P1, P2, and P3 under the “but for” and “evidence” tests.

P1’s fraud claim P2’s negligence claim P3 breach of warranty claim
But for test Yes

If the brochure had not been sent, P1 would have never gone to the resort and had a fraud claim.

Yes

If the brochure had not been sent, P2 would have never gone to the resort and fallen on a banana peel.

No

P3 did not receive the brochure until after he had been to the resort. The brochure was not the cause of him going to Alaska; he went to the resort because his travel agent recommended it.

Evidence test Yes

The brochure is important evidence that will by used by P1 in proving the merits of his fraud claim.

No

The brochure sent by D said nothing about banana peels, and is not relevant to proving whether the resort was negligent.

Yes

P3 will argue that the brochure sent to Florida contains a warranty that was breached by the resort due to the peanut oil he consumed at the resort.

Extra thanks to 1L Antonio Villa de Rey for suggesting ideas to me regarding the third column.

Posted Sept. 13, 2016